Free Exercise of Religion (Part 1): Evolution of Prisoner Rights

By Gary W. DeLand

The Right of Free Exercise

Free exercise of religion is one of the most valued of the rights guaranteed by the Bill of Rights. Many of the earliest settlers in the American Colonies emigrated from Europe to avoid religious persecution (e.g., the Puritans, the Huguenots, the Quakers); thus, the Founding Fathers recognized religion as a requisite freedom. The right to free exercise of religion was considered of such importance that it was covered in the First Amendment. It should come as no surprise that prisoners retain the right of access to religion during incarceration.

While we currently deal with prisoner religious issues from a prisoner rights issue, in the early days of corrections in the U.S., incarceration was often framed in religious context. Prisoners sentences provided an opportunity for repentance or serving penance; thus, convicted persons were confined in a penitentiary. Inmates’ right to free exercise of religion has taken many turns in defining what qualifies as a religion, what religious practices survive incarceration, and the extent to which officials can regulate the free exercise of religion in jails and prisons.

Today religious access involves a balance between prisoners’ demands to be permitted to participate in a wide range of religious practices and corrections officials need to ensure safety, security, order, discipline, and control. Some religious practices which are permitted in society, generally, can if practiced by prisoners degrade essential safety and security requirements. Prisoners in various cases have demanded alcohol for sacraments; illegal drugs for worship ceremonies; religious diets (some of a bizarre nature); access to various religious items such as deer antlers, drinking horns, spears, sweat lodges, kukui nuts, and other such items deemed to have religious significance.

Prisoners have engaged in litigation so corrections officials will permit them to participate in various religious practices – some legitimate aspects of worship and some arguably sham practices – which may degrade legitimate corrections interests and requirements. As a result, the current state of the law with respect to prisoners’ beliefs and practices has created a challenge for officials and has placed them on the defensive. For example, the requirements of the Religious Land Use and Institutionalized Persons Act (RLUIPA) – which will be discussed in more depth in a future article – have set the bar very high for restricting and regulating religious practices.

In developing written policies and procedures and training regarding religion, it is essential not only to ensure compliance with the clearly established rights of prisoners as set forth by the First Amendment of the U.S. Constitution but also the requirements of RLUIPA. This is an essential requirement, because corrections officials’ qualified immunity against damages in litigation depends acting in good faith. Good faith is lost when officials violate clearly established law. Thus it is essential that officials have a working knowledge of the law governing prisoners’ rights of access to religion. Officials are not protected from liability simply because they did not intend to violate the inmate’s rights. Good intentions are not enough.

An officer’s evil intentions will not make a [constitutional] violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.

Ignorance of inmates’ religious rights is not a defense against liability. To the contrary, officials are required to know and act according to the requirements of corrections law. Before officials can avoid violating clearly established law, it is necessary that they have a working knowledge of the legal requirements.

We therefore hold that government [officials] . . . generally are shielded from liability . . . insofar as their conduct does not violate early established statutory or constitutional rights of which a reasonable person would have known.

To properly address prisoners’ free exercise of religion, corrections officials need to understand:

  • What qualifies as a religion.
  • The relevance of sincerity of belief.
  • The difference between religious belief and religious practice.
  • Which religious practices survive incarceration.
  • How to balance the conflict between prisoners’ religious rights and the legitimate correctional interests of jail officials?
  • How RLUIPA increased the degree of difficulty faced by corrections officials in regulation prisoner access to religion.

The Evolution of Prisoner Religious Access

The law governing prisoners’ free exercise of religion has taken an unusual journey to its present stage. Free exercise of religion is set forth in the First Amendment of the Bill of Rights and was the sole federal legal authority governing that right until 1993, when a new authority came into play – the Religious Freedom Restoration Act. But first, a little history.

  1. In 1987, the U.S. Supreme Court handed down two landmark decisions, Turner v. Safley, 482 U.S. 78 (1987) and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), which provided a corrections-friendly four-factor test for evaluating First Amendment claims. The factors supported administrative discretion over judicial intervention. The four parts of that test will be thoroughly discussed in a future article.
  2. In 1990, the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990) upheld an Oregon law which made the use peyote in religious ceremonies a criminal offense. The law directly effected Native American religious practices; however, officials from other religious denominations were concerned about how the case might be used to restrict other religion’s practices.
  3. In 1993, in response to the Employee Division v. Smith decision officials from various concerned religious groups urged the U.S. Congress to provide statutory protection of their religious practices. The lobbying efforts resulted in Congress passing the Religious Freedom Restoration Act (RFRA). As a result of RFRA, corrections officials found themselves very limited in their regulation of prisoner religious practices. RFRA required corrections officials to meet a strict scrutiny test when regulation prisoners’ religious access and practices. Under that test:
    • If a regulation substantially burdened the free exercise of religion . . . .
    • The regulation must advance a compelling government interest and . . . .
    • The regulation must be the least restrictive means of achieving that compelling interest.
    • It proved very difficult for corrections administrators to adopt religious regulation. Following RFRA. Prisoners’ religious demands grew not only in volume, but also in magnitude – including some practices considered excessive – if not bizarre.
  4. In 1997, relief from RFRA arrived like the 7th Cavalry in the form of the U.S. Supreme Court ruling, City of Boerne v. Flores, 521 U.S. 507 (1997), which held the Congress had exceeded its constitutional authority. The Court determined that RFRA as it applies to the states was an unconstitutional exercise of Congress’ enforcement powers, reminding Congress that the Supreme Court – not Congress – Ris responsible for defining the rights guaranteed by the Fourteenth Amendment. According to the Court,
  5. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.
  6. In 2000, the next round of the contest between Congress and the Supreme Court ended with Congress making an end run around the City of Boerne by abandoning its attempt to use its enforcement powers and instead wrote new legislation under the spending clause – the Religious Land Use and Institutionalized Persons Act (RLUIPA) – which applied the same basic requirements that existed under RFRA. However, RLUIPA enforcement was tied to federal funding rather than redefining the First Amendent.
  7. In 2011, next important development was Sossamon v. Texas, 131 S.Ct. 1651 (2011), in which the Supreme Court ruled that, “A person may assert a violation of [RLUIPA] as a claim . . . in a judicial proceeding and obtain appropriate relief against a government.” However, that “appropriate relief” did not include damages.
  8. We conclude that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver.

What Is a Religion?

Traditionally, the key elements of a religion were:

  1. Belief in a supreme being;
  2. Established tenets and doctrines – often of long-standing;
  3. Commonly held beliefs by a significant number of persons; and
  4. Familiar or conventional moral beliefs.

The growing cultural diversity of the U.S. population, the development of a more secular society, and a more legal-based approach to defining a legitimate religion has invalidated the traditional factors that qualify for religious status.

Evolving Definition of Legitimate Religion

During my time as the Salt Lake County Jail Commander, a small group of persons came to the jail requesting a visit. When it was explained that they had arrived after visiting hours and would have to return the next day, they noticed a lone person visiting and inmate. It was explained that he was clergy and this was a religious visit – an exception to the normal visiting hours. A short time later they returned a requested a visit, they were reminded that visiting hours had passed. At that point they explained they were here for a religious visit explaining that they had just established a new religion – the Jesus People of the Upper Room. The were told “Nice try” and were turned away. However, if we have been required to apply RLUIPA in defining religion, the Jesus People of the Upper Room likely have been granted the status of a religious denomination and been approved to visit.

Attempting to establish a definitive set of elements to validate a religion is a losing proposition. Atheism, sham religions, Satanism, and even a religion created for the sole purpose of mocking religion has been granted religious status by courts. In a case involving The Church of the New Song (CONS), also known as the Eclatarian faith, in addition to the religion having been founded as a game to mock religion, it had a stated goal to “destroy” corrections officials.

[O]ur revelation ministry is basically to destroy the Nicolaitans which we believe are the repressive rulers and the powercrats of the system. That means — meaning the prison system, the people in the prison system, the people in the parole system, the people in government in general, the judiciary, et cetera. And we believe in destroying them or changing their minds with the power of our mouth.

“Changing their minds with the power of our mouth” amounted to threats of violence and bloodshed if officials failed to give into their demands. His threats resulted in his being placed in solitary confinement, during which time he kicked a corrections official, threatened to kill staff, and destroyed or damaged the furnishings in his cell. Yet despite his outrageous, dangerous, and violent conduct the federal district court, continue to grant religious status, limited officials security measures, and held officials in contempt of court. Significant parts of the court’s ruling were overturned by the circuit court; however, The Church of the New Song maintained its religious status.

I have highlighted this extreme case to illustrate the difficulty of invalidating any group’s claims of religious status. The approach which offers corrections officials the best likelihood of success is focusing on which religious practices can be refused without violating either the inmates’ rights under the First Amendment or RLUIPA.

Sincerity of Belief

Inmate’s sincerity of belief is a factor which can be considered by corrections officials. Ultimately, however, it is up to the court to decide whether the beliefs professed by prisoners are sincerely held and whether they are indeed religious. The history of the court’s rulings related to the Church of the New Song (CONS) and other arguably sham religions demonstrates that it is very difficult to prove a lack of sincerity. Even after CONS inmates testified that the religion was started as a game, a court ruled they were a religion. While other judges may have made more logical rulings regarding CONS’s religious status, the case illustrates who ultimately decides whose beliefs are sincere and whose are not.

Even where inmates have demanded the benefits attached to certain religions (e.g., special diets, participation in congregate services) while violating many of the central tenets of the religion, they have been found to have sincere belief.

Prisoners’ Belief Versus Practice

Instead of challenging prisoners’ sincerity of belief or whether religion is valid, a much more effective and productive approach is to regulate individual religious practices based on their negative impact on safety, security, order, discipline, and/or control. In a case with very obvious justification, the court held:

Laws are made for the government of actions and, while they cannot interfere with mere religious belief and opinions, they may with practice. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government could not interfere to prevent a sacrifice?

In a case not involving corrections, the U.S. Supreme Court accepted that Church of Jesus Christ of Latter-Day Saints was a religion which could not be banned, but did allow states to ban the church’s practice of polygamy – a central tenet of the religion at the time. Forbidding or restricting particular religious practices is allowed if corrections officials can explain the justification for doing so. While the hypothetical of forbidding human sacrifices is obvious, jail officials who restrict certain religious practices should always provide the rationale for that policy.

In a Wyoming case, the Satanic religion was deemed to be a constitutionally protected religion, but the case was remanded to the trial court for – among other things – further consideration of the prisoners’ request for “such esoteric articles as a ‘baphomet’ which symbolizes Satan, bells, candles, pointing sticks, gongs, incense, and black robes.” The judge’s ruling failed to provide an analysis of how restricting the Satanic articles would further legitimate corrections interests.

It is also important to note that the rationale offered to justify a restriction must be valid and rationally related legitimate penological goals. For example, in the Holt v. Hobbs case the issue the U.S. Supreme Court struck down a policy which did not allow a Muslim prisoner to grow a ½ inch beard. The reasons given were that a ½ inch beard could hide contraband and would allow the inmate to disguise himself by shaving the beard if he escaped. After analyzing the officials’ weak justification for the policy, the court ruled that “without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a ½ inch beard actually furthers the Department’s interest in rooting out contraband.”

Future religion-related articles will discuss prisoners’ rights and litigation under the First Amendment and under RLUIPA and will discuss various religious practices requested by prisoners.

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